United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
Honorable Paul J. Papak United States Magistrate Judge
Otis Johns ("Plaintiff) seeks judicial review of the
Commissioner of Social Security's
("Commissioner") decision denying his application
for Disability Insurance Benefits ("DIB") and
Supplemental Security Income ("SSI") under Titles
II and XVI of the Social Security Act ("Act"). This
Court has jurisdiction over Plaintiffs action pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). I have considered
the parties' briefs and all evidence in the
administrative record. For the reasons set forth below, the
Commissioner's final decision should be AFFIRMED with
respect to the Commissioner's decision regarding SSI, and
REMANDED pursuant to sentence six of 42 U.S.C. § 405(g)
with respect to the Commissioner's decision regarding
protectively filed an application for DIB and SSI on February
15, 2012, alleging disability beginning November 15, 2002,
Plaintiffs date last insured was September 30, 2009.
Following a denial of benefits, Plaintiff requested a hearing
before an ALJ. On April 22, 2014, ALJ Ted Neiswanger held a
hearing. Plaintiff was represented by counsel and testified,
as did a Vocational Expert ("VE"). On June 2, 2014,
the ALJ issued a split decision. The ALJ found Plaintiff
disabled as of October 3, 2013, through the date of the
decision. However, the ALJ found Plaintiff ineligible for DIB
because Plaintiff was not under a disability through the date
last insured, Plaintiff appealed the ALJ's decision pro
se, and this action followed.
establish disability within the meaning of the Act, a
claimant must demonstrate an "inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected ... to last for a continuous period of not less than
12 months." 42 U.S.C. § 423(d)(1)(A). The
Commissioner has established a five-step sequential process
for determining whether a claimant has made the requisite
demonstration. See Bo\ven v. Yuckert, 482 U.S. 137,
140 (1987); see also 20 C.F.R. §
404.1520(a)(4). At the first four steps of the process, the
burden of proof is on the claimant; only at the fifth and
final step does the burden of proof shift to the
Commissioner. See Tackett v. Apfel, 180 F.3d 1094,
1098 (9th Cir. 1999).
first step, the ALJ considers the claimant's work
activity, if any. See Bowen, 482 U.S. at 140;
see also 20 C.F.R. § 4l6.92O(a)(4)(i). If the
ALJ finds that the claimant is engaged in substantial gainful
activity, the claimant will be found not disabled. See
Bowen, 482 U.S. at 140; see also 20 C.F.R.
§§ 4l6.92O(a)(4)(i), 416.920(b). Otherwise, the
evaluation will proceed to the second step.
second step, the ALJ considers the medical severity of the
claimant's impairments. See Bowen, 482 U.S. at
140-141; see also 20 C.F.R. §
404.1520(a)(4)(ii). An impairment is "severe" if it
significantly limits the claimant's ability to perform
basic work activities and is expected to persist for a period
of twelve months or longer. See Bowen, 482 U.S. at
141; see also 20 C.F.R. § 404.1520(c). The
ability to perform basic work activities is defined as
"the abilities and aptitudes necessary to do most
jobs." 20 C, F, R, § 404.1521(b); see also
Bowen, 482 U.S. at 141. If the ALJ finds that the
claimant's impairments are not severe or do not meet the
duration requirement, the claimant will be found not
disabled. See Bowen, 482 U.S. at 141; see
also 20 C.F.R, §§ 404.1520(a)(4)(ii), 404,
1520(c). Nevertheless, it is well established that "the
step-two inquiry is a de minimis screening device to
dispose of groundless claims." Smolen v.
Chafer, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing
Bowen, 482 U.S. at 153-54). "An impairment or
combination of impairments can be found 'not severe'
only if the evidence establishes a slight abnormality that
has 'no more than a minimal effect' on an
individual[']s ability to work." Id.,
quoting Social Security Ruling ("SSR") 85-28,
1985 SSR LEXIS 19 (1985).
claimant's impairments are severe, the evaluation will
proceed to the third step, at which the ALJ determines
whether the claimant's impairments meet or equal
"one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Bowen, 482 U.S.
at 141; see also 20 C.F.R. §§
404.1520(a)(4)(iii), 404.1520(d). If the claimant's
impairments are equivalent to one of the impairments
enumerated in 20 C.F.R. § 404, subpt. P, app. 1, the
claimant will conclusively be found disabled. See
Bowen, 482 U.S. at 141; see also 20 C.F.R.
§§ 404.1520(a)(4)(iii), 404.1520(d).
claimant's impairments are not equivalent to one of the
enumerated impairments, between the third and the fourth
steps the ALJ is required to assess the claimant's
residual functional capacity ("RFC"), based on all
the relevant medical and other evidence in the claimant's
case record. See 20 C.F.R. § 404.1520(e). The
RFC is an estimate of the claimant's capacity to perform
sustained, work-related physical and/or mental activities on
a regular and continuing basis,  despite the limitations
imposed by the claimant's impairments. See 20
C.F.R. § 404.1545(a); see also S.S.R. No.
96-8p, 1996 SSR LEXIS 5 (July 2, 1996).
fourth step of the evaluation process, the ALJ considers the
RFC in relation to the claimant's past relevant work.
See Bowen, 482 U.S. at 141; see also 20
C.F.R. § 416.920(a)(4)(iv). If, in light of the
claimant's RFC, the ALJ determines that the claimant can
still perform his or her past relevant work, the claimant
will be found not disabled. See Bowen, 482 U.S. at
141; see also 20 C.F.R. §§
404.1520(a)(4)(iv), 404.1520(a)(4)(iv), 404.1520(f). In the
event the claimant is no longer capable of performing his or
her past relevant work, the evaluation will proceed to the
fifth and final step, at which the burden of proof shifts,
for the first time, to the Commissioner, At the fifth step of
the evaluation process, the ALJ considers the RFC in relation
to the claimant's age, education, and work experience to
determine whether a person with those characteristics and RFC
could perform any jobs that exist in significant numbers in
the national economy. See Bowen, 482 U.S. at 142;
see also 20 C.F.R. §§ 404.14520(a)(4)(v),
404.1520(g), 404.14560(c), 404.1566. If the Commissioner
meets her burden to demonstrate the existence in significant
numbers in the national economy of jobs capable of being
performed by a person with the RFC assessed by the ALJ
between the third and fourth steps of the five-step process,
the claimant is found not to be disabled. See Bowen,
482 U.S. at 142; see also 20 C.F.R. §§
404.1520(a)(4)(v), 404, 1520(g), 404.1560(c), 404.1566. A
claimant will be found entitled to benefits if the
Commissioner fails to meet that burden at the fifth step.
See Bo\ven, 482 U.S. at 142; see also 20
C.F.R. §§ 404.1520(a)(4)(v), 404, 1520(g).
reviewing court must affirm an Administrative Law Judge's
decision if the ALJ applied proper legal standards and his or
her findings are supported by substantial evidence in the
record. 42 U.S.C. § 405(g); Batson v. Comm'r
Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
Substantial evidence is "more than a mere scintilla. It
means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007) (citing Robbins v. Soc. Sec. Admin., 466
F.3d 880, 882 (9th Cir. 2006)).
court must review the record as a whole, "weighing both
the evidence that supports and the evidence that detracts
from the Commissioner's conclusion." Id.
(quoting Reddick v. Chafer,157 F.3d 715, 720 (9th Cir.
1998)). The court may not substitute its judgment for that of
the Commissioner. See Id. (citing Robbins, 466 F.3d
at 882); see also Edlund v. Massanari, 253 F.3d
1152, 1156 (9th Cir. 2001). Moreover, the court may not rely
upon its own independent findings of fact in determining
whether the ALJ's findings are supported by substantial
evidence of record. See Connettv. Barnhart, 340 F.3d
871, 874 (9th Cir. 2003) (citing SEC v. Chenery
Corp.,332U.S. 194, 196 (1947)). Variable
interpretations of the evidence are insignificant if the
Commissioner's interpretation is rational. Burch v.
Barnhart,400 F.3d 676, 679 (9th Cir. 2005). If the
ALJ's interpretation of the evidence is rational, it is